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Before the Court is Defendant Thomas Bissell's Motion for Summary Judgmene
PROCEDURAL HISTORY
motor vehicle. 2 This incident allegedly occurred on August 14, 2006 at the Union Fair
Grounds. On September 25, 2008, the clerk entered default against the Defendant. On
February 19,2009, the Court granted Defendant's Motion to Set Aside Default. 3 On
I On or about February 17,2009, the Court treated the Plaintiffs Motion to Clarify as a Motion to Amend the Notice
of Claim. The Court does not, however, have the authority to allow the Plaintiff to amend his notice of claim. If a
claim is asserted against the State or a State employee, the Maine Tort Claims Act requires an injured party to file a
notice of claim with the state department and the Attorney General within 180 days after the claim accrues. 14
M.R.S. §§ 8107(1),(3). As Justice Delahanty recently stated, "the MTCA does not allow for ajudicial extension of
the time limit to file a notice of claim after the expiration of the deadlines." Thuotte v. Perry, CUMSC-CV-07-422
n. 4 (Me. Super. Ct., Cum. Cty., June 26, 2008) (Delahanty, J.) (affd in Thuotte v. Maine Turnpike Authority, No.
Mem. 08-227 (Dec. 4, 2008». The MTCA does, however, allow for a late filing if the claimant can show good
cause. 14 M.R.S. § 8107(1). Nevertheless, the notice must be filed within two years from the date that the cause of
action accrues. 14 M.R.S. §§ 8107(1), 8110. Here, according to Plaintiffs Amended Complaint, the alleged injury
occurred on August 14,2006. Any notice of claim must have been filed no later than August 14, 2008.
2 For the first time in his opposition (entitled "Motion to Deny Summary Judgment") Plaintiff alleges that his claim
has "constitutional merit" and "is based on constitutional grounds." However, the Amended Complaint clearly
alleges the Defendant's negligence. See Pl.'s Amend. Compl. ~~ 5, 18(b), 19. In this Amended Complaint, Plaintiff
cites no specific constitutional authority to support his allegations. Tn his opposition, Plaintiff argues that he has a
"Bivens type action[] based on constitutional grounds." PI.'s Mot. to Deny Summ. J. at 1. However, a Bivens
action, coined after Bivens v. Six Unknown Named Agents ofthe Federal Bureau ofNarcotics, 403 U.S. 88 (I 971),
arises wherefederal agents are alleged to have violated an individual's constitutional rights. See Jack Simmons et
ai, Maine Tort Law § 15.10 (1999 ed.). There is no federal agent in this case. Therefore, absent any other
constitutional bases in Plaintiffs Amended Complaint, Plaintiffs claim rests entirely on tort grounds.
3 Various issues arose regarding service of process; however, on February 6, 2009, the Plaintiff obtained service by
acknow ledgment.
January 28,2009, Defendant filed the Motion for Summary Judgment currently before
the Court. 4
FACTUAL BACKGROUND
The following facts S are undisputed. 6 The custodian of records for the
of all tort claims filed with the DOC from January I, 2006 to the present. The DOC
received one notice of tort claim from the Plaintiff. This notice of claim is dated January
16, 2007. This notice of claim was not served on the office of the Attorney General. The
custodian of the records of notice of tort claims served on the Office of the Attorney
General, Alice Sproul, never received any notice of claim from the Plaintiff?
DISCUSSION
The Defendant brings this motion for summary judgment on the ground that the
Plaintiff failed to comply with the tort claim notice requirements of the Maine Tort
4 The timing of Defendant's filing of his motion for summary judgment is curious for two reasons. First, Defendant
filed this motion after the entry of default but before the Court's decision to provide relieffrom default. Second,
Defendant submitted this summary judgment motion before he filed an answer to the amended complaint.
Defendant filed an answer on February 27, 2009.
5 At summary judgment both the moving and the non-moving party must present admissible evidence to support or
oppose the motion. "[T]he factual basis to support or oppose a motion for summary judgment can be provided by (i)
any statement under oath including affidavits, interrogatory responses, depositions, and hearing transcripts; or (ii)
any other document that would have evidentiary significance in a trial." MSBA Practice Series Maine Rules ofCivil
Procedure 386 (Hon. Donald G. Alexander et al. eds., 2008). However, "[u]nsupported denials of facts asserted by
the moving party, or references to portions of an unverified complaint, do not satisfy the admissibility standard." {d.
Here, the Defendant cites to the Plaintiffs Complaint and Amended Complaint throughout his statement of material
facts. See Def. 's S.M.F.~~ 1-6. Because neither filing was verified, they cannot provide admissible evidence upon
which the Court may rely.
6 The Plaintiff failed to respond to Defendant's statement of material facts in accordance with M.R. Civ. P. 56(h)(2).
The facts supported by admissible evidence, Def.'s S.M.F. ~~ 7-15, are deemed admitted. M.R. Civ. P. 56(h)(4).
The Plaintiffs plea for judicial leniency by reason of his pro se status falls on deaf ears. The Law Court has
reiterated numerous times that pro se litigants are held to the same standards as those litigants who are represented
by counsel. See e.g., Dyer Goodall and Federle v. Proctor, 2007 ME 145, ~ 18,935 A.2d 1123, 1127. These
standards include compliance with the Maine Rules of Civil Procedure. ld.
7 On March 4,2009, the Plaintiff filed an "Amended Motion to Deny Summary Judgment" and Statement of
Material Facts." These late filings do not comply with M.R. Civ. P. 56(e), (h)(2) or M.R. Civ. P. 7(c). They are not
considered in this decision.
2
Claims Act (MTCA), 14 M.R.S. §§ 8101-8118 (2008). Specifically, Defendant argues that
Plaintiff's notice of claim filed with the DOC was substantively inadequate and it was
also procedurally deficient in that the Plaintiff did not file a copy of the notice of claim
with the Attorney General. These failures, argues Defendant, preclude Plaintiff from
In a motion for summary judgment, the Court views the evidence in the light
most favorable to the nonmoving party to decide whether the parties' statements of
material facts and the referenced record material reveal a genuine issue of material fact.
Rogers v. Jackson, 2002 ME 140, err 5, 804 A.2d 379, 380 (citations omitted). The Court
gives the party opposing summary judgment the benefit of any inferences that might
reasonably be drawn from the facts presented. Curtis v. Porter, 2001 ME 158, err 9, 784
A.2d 18, 22. If the record reveals no genuine issue of material fact then summary
judgment is proper. Id. err 6, 784 A.2d at 21. A genuine issue of material fact exists when
versions of the truth at trial. Lever v. Acadia Hasp. Corp., 2004 ME 35, err 2, 845 A.2d 1178,
1179.
B. Notice of Claim
The MTCA begins from the proposition that all government entities "shall be
immune from suit on any and all tort claims seeking recovery of damages." 14 M.R.S. §
8103 (2008). However, the statute carves out various exceptions to this immunity,
A(l)(A).
The MTCA outlines the specific procedures that potential plaintiffs must follow
in order to pursue actions where the MTCA lifts governmental immunity. If the claim
is against the State or an employee thereof, potential plaintiffs must present a notice of
claim to the governmental entity involved, and file a copy of the notice of claim with the
Attorney General. rd. § 8107(3)(A). This notice of claim must be provided "[w]ithin 180
days after any claim or cause of action permitted by this chapter accrues." rd. § 8107(1).
Alternatively, the notice of claim may be presented after the 180 days, but within the
two-year statute of limitations period, if "a claimant shows good cause why notice
could not have reasonably been filed within the 180-day limit." rd. In either scenario, a
potential plaintiff must substantially comply with the notice provision prior to the
in the Superior Court. rd. § 8107(4). "The substantial compliance exception is properly
invoked only when the notice, although timely filed or excused from timely filing
because of good cause, is defective in some other respect such as the failure to satisfy
the form requirements of § 8107 (1) (A-E)." Erickson v. State, 444 A.2d 345, 350 (Me.
1982). The notice of claim must be in writing and must contain the following:
A. The name and address of the claimant, and the name and address of
the claimant's attorney or other representative, if any;
B. A concise statement of the basis of the claim, including the date, time,
place and circumstances of the act, omission or occurrence complained of;
rd. § 8107(1)(A)-(E).
The purpose of the MTCA's notice requirement "is to enable the governmental
Pepperman v. Barrett, 661 A.2d 1124, 1126 (Me. 1995). The notice requirement exists for
an action where the employee is acting within the scope of employment "even though
the entity is not itself joined as a defendant." Darling v. Augusta Mental Health Institute,
Courts generally look to see if the errors in the notice of claim constitute mere
"inaccuracies" or whether the errors are more fundamental. Pepperman, 661 A.2d at
1128-29. If the errors are mere errors of form, the governmental entity must show
prejudice, whereas if the errors are considered fundamental, the notice of claim is
invalid under the MTCA. Id. In the instant case, Plaintiff filed the notice of claim with
the DOC within the 180-day period. The issue is whether the notice of claim
In Pepperman v. Barrett, the Law Court held that the claimant's notice did not
substantially comply with the notice requirements because (1) the claimant did not
serve notice on the person designated to receive process under the Maine Rules of Civil
Procedure; (2) the notice failed to describe the nature and extent of the injury; and (3)
the notice failed to describe the monetary damages sought by the claimant. 661 A.2d at
1126. "In short, the communications fail[ed] to provide the town with a sufficiently
clear basis for evaluating and investigating the claims for purposes of defense or
settlement." Id. In contrast, the Law Court held that a claimant substantially complied
with the notice requirements when she presented the notice directly to the litigants,
rather than the governmental entities listed in M.R. Civ. P. 4(d)(4). Robinson v.
Washington County, 529 A.2d 1357, 1360 (Me. 1987). The Robinson court did, however,
explicitly state that the letter contained all section 8107(l)(A)-(E) requirements. Id. n.1.
Subsequently, the Law Court has declined to extend this holding to situations where the
notice did not meet the MTCA requirements. Hall v. Town of Kittery, 556 A.2d 662, 664
(Me. 1989).
Here, Plaintiff's notice of claim states the nature and extent of his injuries; the
names and addresses of the governmental employees involved; and states specific
dollar amounts sought for compensatory and punitive damages. Missing from this
notice of claim, however, is the basis of the claim. The notice of claim does not state the
date, time, place, and circumstances of the act, omission, or occurrence complained oe
Plaintiff's notice of claim did not merely inaccurately state the date, time, and
circumstances of the event; rather, Plaintiff omitted this information entirely from the
notice of claim sent to the DOC. Additionally, it is undisputed that Plaintiff did not
send a copy of the notice of claim to the Attorney General as required by section
substantially complied with section 8107 of the MTCA. To hold otherwise would
frustrate the purpose of the MTCA notice requirement, which is to facilitate early
commencement of a civil action. See Pepperman, 661 A.2d at 1126. Therefore, Plaintiff's
action is precluded by the MTCA. 14 M.R.S. § 8107(4) ("No claim or action shall be
commenced against a governmental entity or employee in the Superior Court unless the
C. Scope of Employment
Next, the Court must consider the procedural posture of this case. The Court has
the Court regarding the facts and circumstances of the event that gave rise to this action.
8 Reid contends that the DOC knew the basis of his claim because he filed a grievance shortly after the incident.
This argument is flawed for several reasons. First, Plaintiff d id not attach the grievance, nor did he incorporate the
grievance into a statement offacts. For this reason alone the Court may disregard this information. Notably,
however, the grievance is attached to Plaintiffs supplemental filings. For the reasons stated in supra note 7, the
Court disregards this information. More fundamentally, the MTCA is a legislative directive that prescribes the
information required in a notice of claim and the person(s) to whom such notice must be addressed. To hold as Reid
contends, would allow incarcerated persons to circumvent the MTCA notice requirements by simply filing a
grievance with the DOC. The Court is unwilling to make such a ruling.
6
See discussion supra note 5. Specifically, there is no admissible evidence that identifies
Defendant Bissell as acting within the scope of his employment on the date of the
alleged incident that caused harm to the PlaintifU If Plaintiff's claim did not arise out
of Defendant's actions within the scope of his employment then the notice provisions of
the MTCA do not apply.lO See Darling, 535 A.2d at 430, Warren v. Nolan, 536 A.2d 1134,
1135 (Me. 1988) (rejecting defendants' motion for summary judgment based on
plaintiff's failure to present adequate notice of claim because there was a genuine issue
of fact whether the defendants were acting within the scope of their employment when
they allegedly made a defamatory statement about the plaintiff); Naslund v. Maloney,
CUMSC-CV-92-839 (Me. Super. Ct., Cum. Cty., Feb. 14, 1996) (Crowley, J.) (denying
defendant's motion for summary judgment based on plaintiff's failure to comply with
the MTCA notice requirements where the court held that the defendant was not acting
the Court cannot hold, as a matter of law, that Bissell was acting in such a capacity at
the time of the alleged incident. Giving all favorable inferences to the non-moving
party, the Court denies Defendant's motion for summary judgment with respect to any
personal liability of Defendant Bissell for the actions he may have committed outside
9 Although Defendant puts this "fact" into his Rule 56(h) statement of facts he cites to only the Amended Complaint
for this proposition. Def.'s S.M.F. ~~ 4-6. Because this "fact" is not supported by an appropriate record citation, the
Plaintiffs failure to controvert this fact is irrelevant.
10 This is distinguished from the MTCA requirement that claimants give notice to the state agency, regardless of
whether that state agency is a named party. See Darling, 535 A.2d at 430.
7
Defendant Thomas Bissell's Motion for Summary Judgment is GRANTED
insofar as Plaintiff's Amended Complaint alleges that Thomas Bissell was acting
within the scope of his employment.
The clerk shall incorporate this Order into the docket by reference pursuant to
M.R. Civ. P. 79(a).
o COURTS
ld County
JX 287
e 0411 2-0287
JF COURTS
oland County
Box 287
:line 04112-0287
BRET REID
807 CUSHING RD
WARREN ME 04864
Before the Court is Defendant Thomas Bissell's motion for summary judgment
pursuant to M.R. Civ. P. 56. The Court also addresses Plaintiff Brett Reid's motion to
amend the statement of material facts, his motion to deny summary judgment and his
PROCEDURAL HISTORY
The procedural history of this case is detailed in this Court's Order dated March
16, 2009. In this Order, the Court held that the notice of claim served by Plaintiff Brett
substantially comply with the requirements of the Maine Tort Claims Act and was
inadequate. As a result of this finding, the Court granted summary judgment for
amended complaint alleged he was acting within the scope of his employment. At that
point, there was insufficient evidence in the record to answer the question of whether
Defendant Bissell was acting outside the scope of his employment. The Defendant's
motion for summary judgment currently before the Court addresses the narrow issue as
to whether Bissell was acting within the scope of his employment when the action
accrued.
FACTUAL BACKGROUND
The relevant facts for the determination of Defendant's motion for summary
judgment are not in dispute. On the date of the incident alleged in the Plaintiff's
complaint, August 14,2006, Bissell was a corrections officer at the Bolduc Correctional
Facility. At that time, Bissell had been employed as a corrections officer for eighteen
years.
The Bolduc Correctional Facility is a work facility, which affords inmates the
opportunity to work and earn good time. Inmates at the Bolduc Correctional Facility
are sometimes given the opportunity to work on community service work projects. As
a corrections officer at the Bolduc Correctional Facility, one of Bissell's duties is to act as
work crew boss and supervise inmates on community work projects. On August 14,
2006, Bissell was working as a corrections officer supervising inmates on a work project
at the Union Fair Grounds. On this day, Bissell was responsible for transporting
inmates and overseeing them while they worked at the Union Fair Grounds.
Plaintiff Reid was an inmate on a work group consisting of five inmates assigned
to work under the supervision of Bissell at the Union Fair Grounds. Bissell supervised
Reid during his time at the Union Fair Grounds in his capacity as a corrections officer.
Bissell was also responsible, as the supervising corrections officer, for transporting Reid
DISCUSSION
I. Standard of Review
A government employee is defined under the Maine Tort Claims Act as "a
state or federal funds...." 14 M.R.S. § 8102(1). The question whether Bissell acted as
an "employee" pursuant to the Maine Tort Claims Act when he was driving the vehicle
from which Reid allegedly fell is "predominantly a question of law for the court to
determine." See Cushman v. Tilton, 652 A.2d 650, 651 (Me. 1995). However, "this
question of law contains subsidiary questions of fact as well." Id. at 652. In determining
whether a government employee is acting within the scope of his employment when the
alleged tortious act occurred, the Law Court considers the specific duties and
responsibilities the individual was engaging in when the claim accrued. Id.
Specifically, the Law Court considers whether the type of conduct at issue is the "type
of conduct the employee was hired to perform; occurs within the time and space of the
Morgan v. Kooistra, 2008 ME 26, <JI 21, 941 A.2d 447, 454.
because there is no genuine issue of material fact with regard to Bissell's actions and
conduct on the date of the alleged incident. Bissell argues that this conclusion is clear
after considering the undisputed facts regarding Bissell's duties, responsibilities and
actions as a corrections officer on that day. In opposition, Reid argues, that negligent
acts, such as ordering Reid to ride in the back of the work truck and/ or driving
officer, Bissell was required to supervise Reid while he performed his duties at the
Union Fair Grounds. This supervision included the transportation of Reid during his
work at the Union Fair Grounds. The alleged incident occurred at the worksite
suggesting that Bissell was using the vehicle for his own personal use when the accident
occurred. Certainly, the transportation of the inmates, including Reid, as well as the
materials in the bed of the work truck was done to serve Bissell's employer, the Bolduc
Correctional Facility. Indeed, those were some of his specific duties for his employment
on that day.
The Court holds that Defendant Bissell was acting as a government employee
within the scope of his employment when the action accrued, and Plaintiff Reid was
required to file an adequate notice of tort claim on the Department and the Office of the
Attorney General. See 14 M.R.S. § 8107(3)(A); see also Order dated March 16, 2009. This
was not done in this case. Therefore, the Court grants Defendant Bissell's motion for
summary judgment.
Because the Court concludes that Bissell was an employee acting within the
scope of his employment and that Reid failed to comply with the notice provisions of
the Maine Tort Claims Act, we need not discuss the other legal issues raised by Reid,
including Plaintiff's motion to amend the statement of material facts; his motion to deny
Since the ruling on the motion for summary judgment is dispositive of all claims
made by Plaintiff Brett Reid, judgment will be entered for Defendant Thomas Bissell.
Plaintiff Brett Reid's Plaintiff's motion to amend the statement of material facts,
his motion to deny summary judgment and his motion to compel discovery are
DISMISSED as MOOT.
The clerk shall incorporate this Order into the docket by reference pursuant to
M.R. Civ. P. 79(a).
4
Dated at Portland, Maine this 3(} r day of _----,.,e.pc:.""'-'-'=+-~_-----J'2009.
obert E. Crowley
Justice, Superior Court
:RK OF COURTS
umberland County
PO. Box 287
nd. Maine 04112-0287
~OFCOURTS
erland County
). Box 287
l1aine 04112-0287
BRET REID
PO BOX 256
EAST MACHIAS ME 04630